Massachusetts Gay Marriage Ruling Raises Fascinating Constitutional Questions

Massachusetts strikes again — this time a federal judge rather than the state supreme court.  And again it’s riveting.  In a pair of lawsuits, the federal court struck down the federal Defense of Marriage Act (DOMA) as a violation of both the Equal Protection Clause and the Tenth Amendment. 

According to DOMA, which was passed by the 104th Congress and signed by President Clinton, “No state (or other political subdivision within the United States) needs to treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state. The Federal Government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.”

Judge Tauro says no.  This is fascinating stuff.

I’ve written before that a proper appreciation for liberty compels support for gay marriage.  But I argued that such support must be political, not judicial.  In other words, it is not the province of the judiciary to decide the issue as a matter of constitutional law.  It is a matter to be won, politically, state by state.  I believe the matter is not properly resolved by the judiciary because I do not believe homosexuals are a protected class and thus entitled to “strict scrutiny” analysis under the Equal Protection Clause.

Now Judge Tauro has done two things I didn’t see coming.  First, applying merely the rational relation test for Equal Protection analysis — rather than strict scrutiny — he held that DOMA fails even the massively-indulgent rational relation test.  Second, he resurrected the moribund Tenth Amendment to hold that marriage is not sufficiently a federal concern, and that the federal government therefore had no business legislating about it in derogation of states’ rights to legislate as they choose.  Wow.

Two things to understand:  first, the “rational relation” test has been code for a long time to mean, of course we defer to the legislature, of course they were at least “rational,” therefore no constitutional violation; and second, the Tenth Amendment, since FDR, the New Deal, and expansive interpretation of the Commerce Clause, has been neutered.  “States’ rights” is a fiction.

So Judge Tauro’s decision is unlikely to prevail on appeal.  But part of me wishes it were otherwise.

It has long bothered me that “rational relation” analysis essentially means, unless we find that the entire legislature was stricken by botulism and enacted the law in question while vomiting and hallucinating, it is constitutional.  I think Judge Tauro is wrong to hold that no “rational legislator” could properly conclude that there is a legally cognizable difference between heterosexual and homosexual marriages — but I am delighted that a federal judge would venture into the territory of invigorating “rational relation” analysis.

I am equally delighted that a federal judge would reinvigorate the Tenth Amendment.  Also, unfortunately, not likely to prevail on appeal, since the federal government fairly clearly has an interest in the definition of marriage.  But what a wonderful jurisprudence these appeals could generate, if federal appellate courts or the Supreme Court held that, no, the Tenth Amendment is no bar to DOMA, but yes, the Tenth Amendment does proscribe some federal conduct.  Yes, the tenth part of our sacred Bill of Rights does mean something.  The federal government cannot do anything and everything.

DOMA was a political expedient for the 104th Congress and for President Clinton.  But here’s what DOMA did right: it is inappropriate for one state court to decide the issue of gay marriage, by force of the Full Faith and Credit Clause, for all states.

I support gay marriage, as I support the right to abortion, but I do not believe either of these issues should be dictated by the judiciary.  These are quintessentially political issues, to be resolved in political venues and won, hopefully, on the merits.

Pro-Gay, Anti-Military Misdirection and Elena Kagan

Captain Pete Hegseth testified before the Senate Judiciary Committee in opposition to Supreme Court nominee Elena Kagan.  It is a short powerful statement.  It underscores succinctly the difficulty that so frequently confronts me in making sense of leftwing priorities.  Captain Hegseth doesn’t argue the merits of the Don’t-Ask-Don’t-Tell law, and in fact acknowledges that reasonable minds can differ.  Instead, he notes merely that the source of the policy was Congress and President Clinton, for whom Ms. Kagan went to work, and that instead of directing her activist opposition to the source of the policy, she directed it at the institution upon whom it was imposed by law.

Moreover, if the opposition to DADT is a genuine instance of solidarity with gay rights (rather than an opportunistic bashing of the military), then why did Ms. Kagan invite and welcome to Harvard’s campus numerous members of Congress who voted for the policy she calls “a moral injustice of the first order”?  These members of Congress were the actual perpetrators of this first-order moral injustice.  Shouldn’t they have been flogged?

Speaking of which, Captain Hegseth notes that Harvard has three academic chairs endowed by money from Saudi Arabia — where homosexuality is a capital offense.  If you are gay, or adequately suspected of being gay, in Saudi Arabia, you will be killed.  Not fired, not scorned, not disrespected.  Killed.  There plainly must be a moral injustice of an order even higher than first.  Saudi Arabia commits that extra-magnitude moral injustice routinely.  And Ms. Kagan would therefore be obliged to oppose it with rough proportion to her activist opposition to the military and its congressionally-imposed DADT policy.  She did not.

So Ms. Kagan’s conduct at Harvard was opportunistic and hypocritical.  I do not suggest that engaging in opportunistic and hypocritical conduct automatically disqualifies Ms. Kagan from confirmation to the Supreme Court.  Let him who is without sin cast the first Saudi Arabian stone.  But can we at least call it a sin?

Gay Marriage/Gay Rights Through the Lens of Libertarian Cultural Debate

Gay Marriage/Gay Rights Through the Lens of Libertarian Cultural Debate

By Kendrick Macdowell

When I read the wonderful debate between Kerry Howley, and Todd Seavey and Daniel McCarthey about libertarians’ obligation, or not, to stake out opposition to social and cultural oppression, rather than only governmental oppression, I was fascinated.  Hooked.  All three were articulate and I commend to you the link, again.

It raises the truly great question, what is the proper scope of insistence upon liberty?

It got me thinking about how one might resolve a specific politically charged cultural question with liberty as your ideological aim and a conservative respect for private institutions and traditions.  Certainly one example of my affinity with Kerry Howley’s full-throated cultural libertarian distrust of coercion from any source, governmental or cultural: I support legal gay marriage. I do not believe gender preference in private — and publicly institutionalized — relationships is a matter of government concern.

Should libertarians, as libertarians, support gay marriage?  Yes, I believe they should.  Should libertarians, as libertarians, support the gay agenda generally?  No — or maybe so maybe no — precisely the discomforting and arguably irresolvable ambiguity that Todd Seavey and Daniel McCarthey highlight in their cautionary essays against Kerry’s cultural libertarianism.  Where government sanction is necessary, as with marriage, it should extend equally to hetero- and homosexuality.  Where government sanction is not necessary, and the matter is a cultural or social question, any of the many varieties of libertarians may search their own conscience and conclude that they support or oppose the matter in question, without recourse to any inquiry into consistent libertarian philosophy.

I respect private institutions and traditions and their capacity to resolve individuals’ existential questions.  I respect religion, tradition, cultural mores, and ethnic identity because I believe all of these, in different ways, allow an individual human being to locate him or herself in a social and/or cultural context that is comforting, explanatory, and empowering.

And I am mindful (and this is sometimes a weakness of libertarian thinking) that not many of us are capable of the heroism of Howard Roark, Dagny Taggart, and Hank Rearden.  Most of us lead lives of quiet desperation, or perhaps once imagined ourselves heroic but now simply wish to give our children a better shot.

Libertarianism, for its viability, depends very much upon its effects on those who do not know what libertarianism is.  And I do not mean merely that the rich get richer and the poor get richer.  I mean that there must be an appreciation, writ large, for liberty and its consequences.

I believe liberty embraces tradition.  It is inexcusably condescending, from a position of liberty, to question anyone who freely embraces tradition.  I have the right to be just so free, and not more, as I wish.  Moreover, even if I am weak, and merely capitulate to tradition, that is also my right.  Your philosophy may not know the trade-offs, you may not understand the personal and social politics and the psychology, you may not understand me.

I am also mindful that any aggregation of power begets abuse.  And this is my sympathy with Kerry.  Like government — religion, tradition, cultural mores, and ethnic identity give rise to power politics.  When these power politics coerce human beings more brutally than any government mandate, how do we conscionably suspend our support for liberty?  When the Taliban mutilates or stones women, I am outraged.  And I don’t mean pre-invasion Afghanistan Taliban government brutalization.  I mean post-invasion, Taliban-on-the-run, “private sector” brutalization.  Taliban-on-the-run still purports to act with proto-governmental authority.  The impulse, before and after the invasion, is precisely the same.  We will control you because you have no choice, and we will bring to bear quasi-governmental instruments of authority and oppression to ensure that you have no choice.

Which leads us to whether it is a libertarian obligation to support gay rights.  If it is, then the first and most urgent obligation would target where gay rights are most egregiously oppressed.

What happens to homosexuals in rigorously Islamic countries?  You don’t want to know.  The oppression in these countries should have, one would think, given rise to an outpouring of leftist outrage — something at least calibrated to exceed the virulent outrage at Sarah Palin and Carrie Prejean, who oppose gay marriage, but wouldn’t kill, torture, or even imprison, gays.  That calibrated outrage didn’t happen.

The answer is absolutely yes, it is a libertarian and humanitarian obligation to support gay rights in countries where governmental and cultural power politics brutally oppress, and kill, homosexuals — or where the government is impotent but cultural quasi-governmental power politics (e.g., rule by warlords) achieve the same result.

Why would some conservatives and some libertarians balk at supporting gay rights in America?

Part of the conservative discomfort with the gay political and cultural agenda in America is its selective outrage, its contempt for tradition, its relatively mild reaction to how horribly gays are treated in countries currently favored by the Left (as opposed to Israel, for example, where gays enjoy by far the most civil, political and cultural rights of any nation in the Middle East), its sometimes in-your-face promotion of gay sex (no different, in conservative estimation, than in-your-face promotion of heterosexual sex and hyper-sexualization of women), and its demonization of ordinary Americans for vague discomfort with gay culture.

Is a libertarian nevertheless obliged to support gay rights in America, based upon a cultural libertarian resistance to oppression wherever it occurs?

Consider a fairly recent cultural skirmish: Miss USA 2010.  Here is the exchange between self-described “queen of all media” Perez Hilton and Miss California Carrie Prejean (who actually picked Hilton as her questioner):

Hilton: Vermont recently became the fourth state to legalize same-sex marriage. Do you think every state should follow suit. Why or why not?

Prejean: Well, I think it’s great that Americans are able to choose one or the other. We live in a land where you can choose same-sex marriage or opposite marriage.  And you know what, in my country, in my family, I think that I believe that a marriage should be between a man and a woman.  No offense to anybody out there, but that’s how I was raised and that’s how I think it should be – between a man and a woman. Thank you very much.

Hilton was outraged.  On his blog, he called Miss Prejean a “dumb bitch,” described her as having “half a brain,” and said he would have stormed onto the stage and ripped off her tiara if she had won.

She didn’t, she was runner-up, likely to most observers because of her answer above.  Some observations.

First, as Miss USA pageants go (and I am not fan), and more precisely, as Q&A with contestants go, Miss Prejean issued one of the more thoughtful and courageous answers in the history of the pageant.  I strongly disagree with her conclusion.  But she articulated a rational answer to one of the most politically charged questions in the history of the pageant with grace.  So who is, really, the condescending, power-tripping, frankly dumb bitch here?

Second, the shocking imbalance of civility here should give pause.  Carrie Prejean issued not a syllable of ad hominem attack, condemned no one, judged no one, and even expressly incorporated into her answer a desire not to offend.  Perez Hilton did what he did, and spoke the vileness that he spoke, within a cultural milieu that tolerates, even sometimes celebrates, that kind of vicious bile.  Do gays honestly wonder why conservatives feel a bit besieged, why their human instincts might actually favor good will but their survival instincts point another direction?

Third, the judicial strategy of the gay agenda turns, in part, on achieving protected minority status under the Constitution’s Equal Protection Clause.  Essential to that legal goal is a showing of powerlessness, for that is what gives rise to the awesome and properly reluctant power of the Constitution to override free democratic enactments of legislative bodies elected by the people.  Is the gay community powerless?  Did the gay community look powerless in the exchange between Perez Hilton and Carrie Prejean and its aftermath?

The question of powerlessness plainly colors the cultural libertarianism debate.  A cultural libertarian, like Kerry Howley, objects to liberty-suppressing power-tripping wherever it occurs.  And I respect that impulse as a personal distaste for bullies.  (To wit, Perez Hilton.)  It doesn’t dictate libertarian support for gay rights across the board — especially when gays are the bullies.

It is a libertarian imperative to support gay marriage as a political (not judicial) proposition because marriage is a government-sanctioned institution and the government has no legitimate interest in the genders of the spouses-to-be.  It is not a libertarian imperative to support the gay rights agenda across the board, and it is the prerogative of any libertarian to be troubled by, and object to, some aspects of the gay rights agenda.

As it is the prerogative of any libertarian to support every aspect of the gay rights agenda, as I generally do, because I personally believe in a culture of equal respect and stature among gays, trans-gendered, and straights.  But that’s a political proposition, and it must be won politically, without recourse to heavy-handed absolutes.